Monday, December 28, 2015

Perhaps It Is a Matter of Black and White

This is a rather longer blog today, but hang in there; this is a complicated social issue that doesn’t get explained easily. As the Black Lives Matter movement steps up its protests, from shutting down Southern California’s 405 Interstate to their big Mall of America gathering in Minnesota, it is relevant to ask again, how valid is their position and what really is going on here? We are watching grand juries reviewing police shootings of black victims and refusing to indict. To most Americans, it simply means that the cops in those shootings were acting reasonably.

The American grand jury system convenes ordinary citizensin secrecyto listen to thelocal prosecutor’s allegations and factual assertionsto determine if there is sufficient cause formally to charge (indict) the target of their investigations with a crime. But the prosecutor is very much a part of the same legal justice system that employs the police. They work together, side-by-side, comrades in arms. So if a prosecutor wants to whitewash a police shooting, he or she simply presents a weak case to the grand jury. That lack of independence is indeed troublesome to many in the black community seeking justice. Increasingly, African-Americans believe this cozy relationship within the local criminal justice system cries out for an independent or special prosecutor who is not a normal part of the local criminal justice hierarchy to investigate these police shootings.

Take for example the investigation of the police shooting of 12-year-old Tamir Rice (pictured above) in Cleveland. Despite the mandated “secrecy” of the grand jury proceedings, the local criminal justice system began slowly leaking stories, all in support of the Officer Timothy Loehmann who was being investigated: “There was a sheriff’s report that said the rookie officer who killed Tamir felt he had ‘no choice’ because the boy had reached for a pellet gun that looked like a real pistol. There were statements from the officer, Timothy Loehmann, and his partner that they saw the boy pulling the toy from his pants, ignoring warnings to show his hands. And there were reports from three experts called by the prosecutors that concluded that Officer Loehmann had acted reasonably because he believed that Tamir had a real gun and posed a serious threat.

“The release of so much material being reviewed by a working grand jury might be considered unusual, but these were not leaks: The evidence was made public by the Cuyahoga County prosecutor himself, Timothy J. McGinty.” New York Times, December 23rd. Cleveland was preparing the community for yet another exoneration of a police shooter. In defense of the prosecutor’s office, there is a growing demand from local communities for a release of information from police shootings as soon as available. However, prosecutors are increasingly using that demand to make sure that what is released, how and when such information is released, favors whatever result the local criminal justice system wants. Absent overwhelming and incontrovertible evidence that cannot be explained away, it seems that police shootings are often evaluated in a way that would never apply to any other killing.

Back to the Rice shooting: “The grand jurors have been meeting for weeks, and it remains unclear whether they will indict Officer Loehmann or his partner, Frank Garmback, in the Nov. 22, 2014, shooting. But the release of critical evidence suggesting that the officers’ actions were reasonable has left many people in Cleveland convinced that no indictments are forthcoming. And that possibility has fueled an unusually bitter feud between Mr. McGinty and the people who might have been expected to be his natural allies, the Rice family.

“‘We have never seen a prosecutor try so hard to lose a case,’ said Jonathan S. Abady, a lawyer for Tamir’s mother, Samaria Rice. He has accused Mr. McGinty of hiring ‘pro-police experts’ to evaluate evidence and has faulted him for allowing Officer Loehmann and his partner to read personal statements to the grand jury without being cross-examined. The family has asked the Justice Department to investigate the shooting, a request the department is reviewing.” NY Times. On December 28th, the grand jury surprised no one with its announced decision not to indict either Loehmann or Garmback. But wait, there is so much more to this cop-on-black matter.

The rest of the world is fascinated by what they believe are the strange machinations and idiosyncrasies of a gun-crazed cowboy culture where racism seems to have trumped (ooops!) the “equal protection of the law” provisions of our constitution. In the U.K., where only a tiny fraction of their police force are even allowed to carry guns, there is a morbid curiosity over our propensity for violence, particularly against minorities. They’ve got their own racial and ethnic communities with issues that seem reflective of some our America’s questions, but since guns are strictly controlled there, the challenge of police shootings just isn’t relevant in their world. So back on May 15th, the BBC.com asked the question: “Why do US police keep killing unarmed black men?” Their gathering of experts on the subject makes great reading, the perspective of an unbiased outsider looking into our criminal justice system.

The first question asked is whether or not there really is some disproportionate proclivity for police to killed blacks. Despite the NRA’s rather successful lobbying of state legislatures and Congress to limit access to gun homicide data, the BBC found one highly credible analyst who painstakingly compiled the necessary statistical information through myriad sources to confirm that assumption. They turned to Sam Sinyangwe, 24-year-old black a researcher and activist who started theMapping Police Violenceproject.

Sam’s report: ‘There are statistics on all kinds of violent crimes. And yet, when it comes to people being killed by police officers, there's no data on that. So a light bulb went off in my head. I looked at two crowd-sourcing databases which collected all of the names. I then went through the media reports listing each of those people who were killed.’… He counted 1,149 people of all ethnic groups killed by the police in 2014.

‘I identified whether they were armed or unarmed. I identified them by race by looking at if there was an obituary or another picture of them online… In the aftermath of Ferguson [where the unarmed teenager Michael Brown was killed], there was this big question “Is this a pattern, is this an isolated incident?” What [my data] shows is that Ferguson is everywhere. All over the country you're seeing black people being killed by police.’

The youngest recorded was 12, the oldest 65. More than 100 were unarmed…‘Black people are three times more likely to be killed by police in the United States than white people. More unarmed black people were killed by police than unarmed white people last year. And that's taking into account the fact that black people are only 14% of the population here…’

OK, there’s clearly a problem. “Why?” asked the BBC. They queriedLorie Fridell, an Associate Professor of criminology at the University of South Florida and former director of research at the Police Executive Research Forum, who has spent years looking at cop-on-black shootings.

Fridell’s observations:‘Bias in policing was not just a few officers in a few departments; and, overwhelmingly, the police in this country are well-intentioned. I couldn't put those two thoughts together in my head until I was introduced to the science of implicit bias.

‘We all have implicit biases whereby we link groups to stereotypes, possibly producing discriminatory behaviour - even in individuals who are totally against prejudice… Theoriginal 'Shoot, Don't Shoot' studieshave a subject sitting in front a computer monitor and photos pop up very quickly, showing either a white or black man. That man either has a gun in his hand or a neutral object like a cell phone. The subject is told 'if you see a threat, hit the 'shoot' key and if you don't see a threat, hit the “don't shoot' key”….

The studies suggest that implicit biases affect these actions - for example in some studies people are quicker to 'shoot' an unarmed black man than an unarmed white man. A Department of Justice report released in Marchlooking at the use of deadly force by Philadelphia police, supports the idea that police are susceptible to implicit bias:

‘One of the things they looked at is what they called threat perception failure. The officer believed that the person was armed and it turned out not to be the case. And these failures were more likely to occur when the subject was black [even if the officers were themselves black or Latino].

‘Officers, like the rest of us, have an implicit bias linking blacks to crime. So the black crime implicit bias might be implicated in some of the use of deadly force against African-Americans in our country.’

For the police officer perspective, the BBC asked Seth Stoughton, aformer policeman who is now a law professor at the University of South Carolina:‘The first rule of law enforcement is to go home at the end of your shift. The key principle is officer survival. That's what all training is designed to promote. But it ends up endangering civilians rather than preserving their safety.

‘The warrior culture - the belief that police officers are soldiers engaged in battle with the criminal element - that has contributed to some shootings that were most likely avoidable.

‘It starts in police recruitment videos that show officers shooting rifles, strapping on hard body armour, using force. That attracts a particular type of candidate, and the Police Academy further entrenches this…. It teaches officers to be afraid by telling them that policing is an incredibly dangerous profession.

‘Officers are trained to view every encounter as a potential deadly force incident: you walk up to a person who is loitering outside of a convenience store, their hands are in their pockets. You as the officer begin talking to them, and without saying a word they pull a gun out of their pocket and begin shooting you…’

Lastly, the BBC accessedCharles Ramsey, anAfrican-American andCommissioner of the Philadelphia Police Department, who asked by President Obama to runthe President's Task Force on 21st Century Policing.‘We live in a society where everybody wants to point fingers, but we have a lot of deeply-rooted societal problems: poverty, education, poor housing stock.

‘We've got to deal with the issue of extreme poverty. Philadelphia has the highest rate of poverty among US cities. You have an underground economy that supports many of these neighbourhoods - drugs, prostitution, illegal cigarette sales.

‘Why are police in large numbers in some of these neighbourhoods? We have to deal with the reality that there's a disproportionate amount of crime occurring in many of these neighbourhoods.

‘We've had several police officers shot and killed during the past seven years. I've had eight officers killed in the line of duty - five shot dead. So there is violence that takes place against police as well, and that needs to be taken into consideration.’…

In response to the Department of Justice report criticising Philadelphia police's use of force, Commissioner Ramsey introduced new training that focuses on de-escalation, as well as armed response: ..‘Putting them in scenarios where they have to exercise good judgement and being able to critique that so that when they are in these real live situations, their reaction, their response, is really more consistent with what the actual threat is.’

To the BBC, we face implicit biases, failed priorities under “us vs. them” warrior training, and a society more interested in saving money than providing alternative paths to inner city youths with better schools and better/safer housing and employment opportunities. Add a society where there are 300 million guns permeating the atmosphere, and the result are less than surprising. The problem is real. The solutions expensive and complex, and there seems to be some rather clear evidence that we may not have the commitment to solve the problem. Lives matter, but black lives seem to have a special issue that simply does not apply to the balance of the population.

I’m Peter Dekom, and where injustice becomes embedded in our political system, each and every American is a “little bit less” by tolerating such inequities.

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Peter's Bio

Peter J. Dekom practices law in Los Angeles and was formerly "of counsel" with Weissmann Wolff Bergman Coleman Grodin & Evall and a partner in the firm of Bloom, Dekom, Hergott and Cook. Mr. Dekom's clients include or have included such Hollywood notables as George Lucas, Paul Haggis, Keenen Ivory Wayans, John Travolta, Ron Howard, Rob Reiner, Andy Davis, Robert Towne and Larry Gordon among many others, as well as corporate clients such as Sears, Roebuck and Co., Pacific Telesis and Japan Victor Corporation (JVC). He has been listed in Forbes among the top 100 lawyers in the United States and in Premiere Magazine as one of the 50 most powerful people in Hollywood .

Mr. Dekom has been a management/marketing consultant, and entrepreneur in the fields of entertainment, Internet, and telecommunications. As a consultant to the state of New Mexico for almost a decade, he was instrumental in creating, writing and implementing legislation to encourage film and television production in the state and supervised the film loan program portion of that incentive structure until the spring of 2011. Mr. Dekom has also provided off-balance sheet, insurance-backed financing for major motion picture studios.

Mr. Dekom served on the board of directors of Imagine Films Entertainment while the company remained publicly traded and was a board member of Will Vinton Studios and Cinebase Software, among others, leaving upon change of ownership. He has also served as a member of the Academy of Television Arts and Sciences and Academy Foundation, Board of Directors, Chairman (now Emeritus) of the American Cinematheque, and on the Advisory Board of the Shanghai International Film Festival. He recently served on the Board of Governors for the America Bar Assn.’s Sports and Entertainment Law Section, where he often authored articles, delivered lectures and continues to be an active participant.

The Beverly Hills Bar Association honored Mr. Dekom as Entertainment Lawyer of the Year in 1994, the Century City Bar Association accorded him the same honor in 2004, and the Family Assistance Program named him Man of the Year in 1992 for his work with the homeless. In 2012, the American Bar Association, through its Forum on Sports and Entertainment Law, honored Mr. Dekom with its highest recognition for entertainment lawyers, the Ed Rubin Service Award. Author of dozens of scholarly articles, Mr. Dekom also is the co-author of Not on My Watch; Hollywood vs. the Future (New Millennium Publishing, 2003) with Peter Sealey and author of Next: Reinventing Media, Marketing and Entertainment (HekaRose Publishing Group 2014). He has served as an adjunct professor in the UCLA Film School, a lecturer (entertainment marketing) at the University of California, Berkeley Haas School of Business as well as being a featured speaker at film festivals, corporations, universities and bar associations all over the world.

Mr. Dekom graduated from Yale in 1968 (BA), and graduated first in his class in 1973 from the UCLA School of Law (JD). He is married to Kelley Choate, an MBA and former art gallery-owner who evolved into a renowned micro-collage artist in her own right. He also has a son, Christopher (b. 1983), who is a Duke University graduate, a Chartered Financial Analyst, a 2013 Darden (UVa) MBA graduate, and is currently an executive with a Los Angeles-based media and entertainment company. Chris' wife, Stephanie (a 2013 George Washington University MD grad), is a neonatal pediatrics 'fellow' at a major Los Angeles hospital